Commonwealth v. Juvenile M.

Complaints
received and sworn to in the Suffolk County Division of the
Juvenile Court Department on December 19, 2014.

A
proceeding for revocation of probation was had before Peter
M. Coyne, J.

Alison
R. Bancroft for the juvenile.

Julianne Campbell, Assistant District Attorney, for the
Commonwealth.

Present: Green, Hanlon, & Kinder, JJ.

HANLON, J.

After a
probation violation hearing, a judge in the Juvenile Court
found that the juvenile had violated the terms of his
probation because he was charged three times with subsequent
offenses allegedly committed while he was on probation. The
judge committed the juvenile to the Department of Youth
Services (DYS) until his eighteenth birthday. The juvenile
now appeals, arguing that the only evidence offered on two of
the three offenses was his court activity record information
(CARI) record indicating that new complaints had issued.
While we agree with the judge that the evidence supported a
finding of violation regarding one offense on one complaint,
for which there was other evidence, judicial notice of the
CARI records, without more, was insufficient to support
finding the other two violations.

Background.

The
juvenile was placed on probation and his case continued
without a finding, on May 8, 2015, after he admitted to facts
sufficient to support findings of delinquency on charges of
malicious destruction of property and vandalizing property.
Ten days later, a probation officer issued a notice of
probation violation after the juvenile was arrested for
possession of a firearm, possession of ammunition, carrying a
rifle or shotgun on a public way, and assault by means of a
dangerous weapon. The probation case was continued a number
of times and, on February 10, 2016, a second notice of
probation violation was served on the juvenile as a result of
other new charges, this time, affray and disturbing of public
assembly. On March 11, 2016, a third notice of probation
violation issued, alleging a "violation of the criminal
law, namely, larceny."

At the
probation violation hearing in June, 2016, a Boston police
sergeant testified that he had responded to a call regarding
a dispute among neighbors on Blue Hill Avenue in Boston. When
he arrived, an individual told the sergeant that
"someone had a firearm and threatened [that
individual]." The sergeant and other officers spoke to
all of the parties present and then left the area; they were
called back a short time later. On his return, the sergeant
saw a large group of young males on the street run into a
nearby house. He followed them and, eventually, seized the
defendant. Nearby was a backpack and, in the backpack, were
two loaded firearms. At the end of the probation violation
hearing, the judge, explicitly crediting the sergeant's
testimony, found that the juvenile had violated the terms of
his probation "by committing a new offense, namely . . .
the possession of firearm charge."

Counsel
for the juvenile then inquired about the status of the other
pending probation violations and, after some discussion, the
judge added, "And as to the affray and the disturbing of
public assembly, I find that by a preponderance of the
evidence that he's in violation for that based upon the
CARI record. And as to the larceny, I find by a preponderance
of the evidence that he violated as to that as well. So
it's limited -- the violations are limited to the three
new offenses." Defense counsel objected, pointing out
that, "at the hearing, there was no evidence submitted
whatsoever on those two particular charges. The Probation
Department didn't even seek to admit the police
report." The judge noted the objection and stated that
he was "taking judicial notice of the CARI." As
noted supra, the judge then committed the juvenile
to DYS until his eighteenth birthday.

Discussion.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Initially,
the juvenile argued that there was insufficient evidence to
find any violation of probation. However, he now concedes
that that argument "has been rendered moot by [his]
subsequent plea of delinquency" to a reduced charge of
possession of a firearm without a firearm identification
card, in violation of G. L. c. 269, &sect;
10(h).[1] We agree. See Commonwealthv.Joyner, 467 Mass. 176, 190 (2014),
quoting from Commonwealthv.Maggio, 414 Mass. 193, 198 (1993) ("Because it
rests on a finding of guilt beyond a reasonable doubt,
however, '[a] criminal conviction . . . adequately
protects the probationer's right to due process, and may
serve as the basis for a summary [finding of a ...

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